A Minimalist Charter of Rights for Australia: The U.K. Or Canada as a Model?
23 Pages Posted: 11 Dec 2009
Date Written: December 8, 2009
A lively debate is currently occurring in Australia as to whether to adopt a comprehensive charter of rights at the national level, and if so, what form it should take. Two principal options are also under consideration, namely a charter modeled on the Human Rights Act 1998 (UK), or the Canadian Bill of Rights, SC 1960 c. 44 ('CBOR'). This article argues for the latter, Canadian-style model of statutory rights charter on the basis that, in substance, it involves the more minimalist form of constitutional change. Contrary to the current orthodoxy in Australia, the article suggests that a British-style charter directly undermines the likelihood that the Court will interpret statutes in a way that leaves scope for legislative response to court decisions, and therefore also the chances of maintaining the current balance between the High Court and Australian Parliament when it comes to the protection of individual rights. In Australia, this danger of statutory distortion will also be even more acute, it suggests given the doubts surrounding the constitutionality of the High Court's issuing, or hearing appeals against the grant of, certain UK-style weak-form remedies. By contrast, whether modeled on either the CBOR or the later more entrenched Canadian Charter, a Canadian-style rights model of strong judicial remedies is both more likely in the first place to deliver the 'true value' of statutes and also to be unaffected by the difficulties and doubts created by Ch III of the Constitution. Accordingly, it is also substantially less likely than a UK-style rights charter to lead to a form of de facto strong rather than weak or dialogic judicial review. On purely minimalist criteria, the article argues, a Canadian-style rights charter modeled on the CBOR therefore clearly dominates a British-style charter, so that if a British-style charter is to be defended as a preferred charter model in Australia, it cannot be on minimalist grounds alone.
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